Lesson 7
Civil Rights
Federal Laws
The
Federal Civil Rights Act of 1866 - Prohibits discrimination based on race
without exception. The United States Civil Rights Act of 1968, and its
Amendments in the Act of 1988, are commonly called The
Federal Fair Housing Act of 1968 - These laws prohibit housing
discrimination against certain classes of individuals.
In a significant 1968 case, the Supreme Court
decided Jones v Mayer where the Court upheld the Civil Rights Act of 1866. The
ruling prohibits all racial discrimination, private or public, in the sale and
rental of property. The decision was important because the 1968 law, as it was
written, exempts homeowners who rent a part of the home they live in, and
certain groups who, for example, may wish to rent to members of their own religion
or club.
Federal Fair Housing Laws, specifically the1968
Fair Housing Act, prohibit discrimination if it is based on:
- Race
- Religion
- National Origin
- Color
- Disability (mental or physical)
- Sex
- Familial Status
Note that smokers, convicted criminals, poor
folks, or pet owners are not mentioned by federal law. We should also note
that, contrary to popular understanding, familial status in federal law
prohibits only discrimination against children and does not, in itself, require
renting to unmarried couples and those of particular sexual orientation.
However, familial status does mean that you can't use safety or other issues as
a reason to discriminate against children.
The most obvious example of discrimination is
refusing to rent to a member of a protected class. But housing
discrimination can take many forms, including: offering different lease terms to
members of protected classes; using discriminatory or preferential language in
an advertising; treating certain classes of applicants preferentially or
segregating protected classes into separate areas of a rental property or
community.
The Fair Housing Act prohibits landlords
from taking any of the following actions based on any protected class:
- Advertising or making any statement that indicates a preference based on
group characteristic, such as skin color
- Falsely denying that a rental unit is available
- Setting more restrictive standards, such as higher income, for selecting
tenants
- Refusing to rent to members of certain groups
- Applying different screening criteria to some applicants
- Refusing to accommodate the needs of disabled tenants, such as allowing a
guide dog, hearing dog or service dog
- Setting different terms for some tenants, such as adopting an inconsistent
policy of responding to late rent payments
- Terminating a tenancy for a discriminatory reason
State & Local Laws
State and local Housing Discrimination
Statutes and fair housing laws sometimes provide even broader coverage.
They may prohibit discrimination based on age, occupation, source of income,
political affiliation, marital status, sexual preference, ancestry, and/or
military background. To our knowledge, no state includes smokers.
It is extremely important that landlords know and
follow the fair housing laws of their state and local area as well as the better
known federal laws.
Americans with Disabilities Act
Individuals with disabilities have a right to
equal housing opportunities under both the Fair Housing Act (FHA), which made
them a protected class, and the Americans with Disabilities Act (ADA) of 1990,
which requires that a landlord make economically feasible
"reasonable accommodations" and "reasonable modifications" for
disabled tenants. Fair Housing requires that a
landlord not discriminate based on a tenant applicant's mental or physical
handicap. The American's with Disabilities Act goes much further. Those
covered by the Act include: any physical, mental and emotional impairment that
limits one or more of life's major activities.
Economically feasible usually means that the
tenant must bear the cost of reasonable modifications. The tenant must
also perform the modification in accordance with applicable laws and codes.
Finally, the tenant must restore the unit to its original or an equivalent state
if the landlord desires. The landlord can usually require a special
deposit or bond to assure that it will be properly restored.
Reasonable accommodation might include to an
issue such as assigning the closest parking space to a mobility impaired tenant
even though it is your policy to not assign spaces to tenants.
Reasonable modifications would likely include
widening of doorways, construction of ramps, and installation of grab bars in
bathrooms. Additions or other major structural changes would probably not
be included.
The ADA can even come into play regarding your
pet policy. The benefits of pet ownership to physical and emotional health
in people has been well researched and documented. As a result,
legislation is in place in the U.S. that allows seniors in federally funded
housing to have pets. A HUD administrative judge ruled in November 96 (HUD
vs. Dutra, No HUDALJ 90-93-1753-8 (HUD Offices of Admin. Law Judges 11/12/96))
that the managers of a California apartment community with a no pets policy
violated the Fair Housing Act by attempting to evict a disabled tenant because
he had a cat. The resident's physician said the cat served a therapeutic purpose
and therefore, in the eyes of the judge, the apartment manager's failed to make
a "reasonable accommodation".
Disabled
Americans are protected by both the Federal Fair Housing Act and The American's
with Disabilities Act. We have several pages on the subject under a web called Barrier
Free. You may also wish to visit the U.S. government pages on: Fair
Housing Requirements for People With Disabilities
Exemptions To Federal Fair Housing Laws
Religious Organizations & Private Clubs
A restriction on the sale or rental of property
owned by groups may be limited to their members, if they meet the federal
guidelines. Anyone who seeks to use this exception to Fair Housing Law should
confirm it with competent legal counsel first, as an error in interpretation
could prove costly.
Senior Housing
A landlord can only discriminate
against tenants with children if the property meets the following criteria:
- The housing is intended solely for persons 62 years old
or above.
- 80% of the units have at least one occupant 55 years old
or above and the building has age restrictions.
HR660, passed in December 1995,
eliminated a previous federal requirement that qualifying senior housing must
provide significant facilities like community dining, health care or recreation
to allow for restrictions against children. Qualified
senior housing advertising can state: "No Children Allowed", or
"Over 55 Building," but it cannot discriminate against other protected
classes under the Fair Housing Law.
Small Landlords
There are exemptions for the following categories
of small landlords:
- Owner occupied 4 units or less
- Owner of 3 units or less and have not sold or rented
other units in the past 24 months
You need to understand that
neither exception is available if a real estate agent is utilized and that
advertising cannot be discriminatory. You also need to understand that
second small landlord exception is very restrictive. If you have rented
one of your 3 units, or rented or sold any other units within the past 24
months, the exception is not available to you. Finally, even though these
exceptions are provided for under The
Federal Fair Housing Act of 1968, the exceptions my not be
available under state or local laws and one could still be considered to have
violated the The
Federal Civil Rights Act of 1866.
Complaints & Penalties For
Discrimination
The U. S. Department of Housing and Urban
Development (HUD), is the agency that enforces the Fair Housing Act. State
and local offices are listed with HUD's Fair Housing Information Clearinghouse
at (800) 343-3442. HUD provides complaint forms, investigates and decides the
merits of any discrimination claim.
Complaints must be filed with HUD within one year
of the alleged discrimination. HUD typically appoints a mediator to
negotiate with the landlord and reach a settlement (called a
"conciliation"). If a settlement can't be reached, the fair
housing agency holds an administrative hearing to determine whether actually
discrimination occurred.
If the discrimination is a violation of a state
fair housing law, the tenant can file a complaint with the state agency in
charge of enforcing the law. In Michigan, for example, the State Civil Rights
Commission deals with complaints. California enforcement of the state's two fair
housing laws is through the Department of Fair Employment and Housing.
In addition to filing a complaint with HUD or a
state agency, tenants may file lawsuits directly in federal or state court.
If a state or federal court or housing agency finds that discrimination
has taken place, a tenant may be awarded damages, including any higher rent he
or she had to pay as a result of being turned down, for example.
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Actual Damages: Out-of-pocket costs
incurred by the complainant as a result of discrimination. They can also
include compensation for non-economic injuries like emotional distress and
humiliation.
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Civil Penalties: From $10,000 for
the first violation, to $50,000 for any subsequent. If the US Justice
Department sues, the civil penalty can reach $100,000.
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Punitive Damages: These awards have
no limit and have been in the millions.
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Injunctions. An inductive order may
prohibit a specific act, or even require some corrective action in the
future. For example: the landlord may be required to advertise for and
rent to minorities to fill their next vacancies.
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Attorneys Fees: Fair Housing Laws
allow the injured party to receive their attorney fees from the loser.
It is obvious that discrimination
can be expensive. Landlords should protect themselves against such costs by:
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Establish policies, procedures, and guidelines in writing
ahead of time and follow them in every case.
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Make sure that all of your actions, policies, and
procedures are based upon legitimate, non-discriminatory business factors.
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Have accurate, complete, and available records to
demonstrate that these policies, procedures, and guidelines were followed
in similar cases.
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Take any complaint seriously.
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Don't hesitate to ask questions or get an explanation from
HUD or the agency investigating the complaint.
The 10 most common fair housing
mistakes are:
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Failure to keep records
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Inconsistency in the application of rules
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Retaliation
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Having an all-adult complex that does not adhere to the
guidelines imposed by the Fair Housing Act
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Violation of familial status laws out of concern for
safety
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Failure to reasonably accommodate a tenant with a
disability
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Failure to clearly convey your commitment to fair housing
to manager, rental agents, and tenants
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Failure to train managers
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Unreasonable occupancy standards
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Failure to communicate with the tenants
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